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This book has been bound in a medium brown with black lettering on the spine and front cover. Owner's name stamped on endpapers. Text is clean and tight in it's binding. Judge Advocate General of the Army. Published by Dept. Used - Hardcover Condition: Very Good. Former owner's name; pages. Office of the Judge Advocate General of the Army. Later Printing. Khaki-color boards with black lettering, ix, pp. Military Judges' Benchbooks provide trial procedure and instructions as well as jury instructions.
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Joint Service Committee on Military Justice. Manual for courts-martial, United States. Summary courts-martial. Any person who may convene a general or special court-martial and the commanding officers of the commands designated in Article 24a may convene summary courts-martial.
When empowered by the Secretary of the Department concerned, an officer in charge of a command of the Navy or Coast Guard may convene summary courts-martial Art. Summary courts-martial may, however, be convened in any case by superior competent authority when deemed desirable by him. When but one officer is present with a command or detachment he shall be the summary court-martial of that command or detachment and shall hear and determine all summary court-martial cases brought before him Art.
When more than one officer is present, a subordinate officer will be appointed summary court-martial. If the convening authority of a summary court-martial or the summary court officer is the accuser of the person or persons to be tried, it is discretionary with the convening authority whether he will forward the charges to superior authority with a recommendation that the summary court be appointed by the latter; but the fact that the convening authority or the summary court officer is the accuser in a particular case does not invalidate the trial.
For each general and special court-martial the authority convening the court shall appoint a trial counsel and a defense counsel, together with such assistants as he deems necessary or appropriate. No person who has acted as investigating officer, law officer or court member in any case shall act subsequently as trial counsel, assistant trial counsel, or, unless expressly requested by the accused 61f 4 ; app. No person who has acted for the prosecution shall act subsequently in the same case for the defense, nor shall any person who has acted for the defense act subsequently in the same case for the prosecution Art.
Unless the contrary affirmatively appears of record, a person who, between the time the case has been referred for trial and the trial, has been an appointed counsel or assistant counsel of the court to which the case has been referred, shall be deemed to have acted as a member of the prosecution or the defense as the case may be.
A person who has acted for the accused at a pretrial investigation or other proceedings involving the same general matter is ineligible to act thereafter for the prosecution. An accuser, unless expressly requested by the accused 61f 4 ; app. The general principles of 4f and 4g 3 are applicable to the appointment of counsel and assistants.
The commanding officer of a joint command or a joint task force may appoint any qualified officer of his command as a counsel or as an assistant counsel of a general or special court-martial irrespective of the armed force of which such officer is a member. Qualification of counsel of general courts-martial. A person who is appointed as trial counsel or defense counsel of a general court-martial shall be a judge advocate of the Army or the Air Force, or a law specialist of the navy or Coast Guard, who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or shall be a person who is a member of the bar of a Federal court or of the highest court of a State Art.
In addition to this qualification, a person who is appointed as a trial counsel or defense counsel of a general court-martial shall be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member Art. The term "judge advocate of the Army or the Air Force" as herein used shall be construed to refer to all officers of the Regular Army appointed in the Judge Advocate General's Corps, all non-Regular officers of any component of the Army of the United States on active Federal duty assigned to the Judge Advocate General's Corps by competent orders, and all Regular Air Force officers belonging to that group of judge advocate officers of the United States Air Force constituting a Judge Advocate General's Department or designated judge advocates by appropriate orders, or non-Regular officers of any component of the Air Force of the United States on active Federal duty designated as judge advocates by appropriate orders or assigned to a Judge Advocate General's Department within the Air Force of the United States.
The term "law specialist" as herein used shall be construed to refer to an officer of the navy or Coast Guard designated for special duty law. The order appointing a general court-martial will expressly state the qualification of the trial counsel and the defense counsel as prescribed by Article 27b. A statement that counsel is certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member is sufficient to show that the person so certified is fully qualified by reason of legal training or bar membership as prescribed by Article 27b 1.
Qualification of counsel of special courts-martial. Any officer not disqualified by reason of prior participation in the same case 6a may be appointed trial counsel or defense counsel of a special court-martial. But if the trial counsel is qualified to act as counsel before a general court-martial, the defense counsel must be similarly qualified Art.
The appointing order will expressly state whether trial counsel and defense counsel are or are not legally qualified lawyers in the sense of Article 27c. See appendix 4 for forms. Proof of the qualification of judge advocates, law specialists see 6b , and officers certified as qualified by an appropriate Judge Advocate General pursuant to Article 27b 2 is on file in the office of the Judge Advocate General of the armed force of which the officer concerned is a member.
The qualifications of other officers as members of the bar of a Federal court or of the highest court of a State Art. After such determination the officer concerned will report any change in his qualification to the convening authority. The record of trial will show verification of the qualifications recited on the orders. See 61e and f and appendix 8a. Qualification of assistant trial counsel and assistant defense counsel.
In general it is desirable that as many assistant defense counsel as assistant trial counsel be appointed, and that officers be appointed as assistant defense counsel and assistant trial counsel who have comparable military experience and legal qualifications. If the conduct of the prosecution or the defense in any case before a general court-martial devolves upon an assistant counsel, such assistant counsel must be qualified in the sense of Article 27b Art.
The conduct of the prosecution or defense does not devolve upon an assistant if the trial counsel or defense counsel, as the case may be, is present in court. When the trial counsel or assistant trial counsel conducting the prosecution before a special court-martial is qualified as a lawyer in the sense of Article 27c, the defense counsel or, in his absence, the assistant defense counsel upon whom the conduct of the defense has devolved, must be similarly qualified Art.
See 61f 2 for procedure as to inquiry into the qualifications of individual counsel for the defense in cases where the accursed does not desire the services of the regularly appointed personnel of the defense. The appointing order for every general or special court-martial will expressly state whether assistant counsel are or are not legally qualified as lawyers in the sense of Article Whenever appropriate, the qualifications of assistant counsel appointed for special courts-martial shall be determined and shown as prescribed in 6c.
Under such regulations as the Secretary of a Department may prescribe, the convening authority of a court-martial or military commission or a court of inquiry shall appoint qualified court reporters who shall record the proceedings of and testimony taken before such court or commission.
Under like regulations the convening authority of a court-martial, military commission, or court of inquiry may appoint one or more interpreters who shall interpret for the court or commission Art.
The appointment and employment of reporters and interpreters may be effected by the convening authority personally or through a staff officer including the trial counsel.
The appointment of reporters may be oral and need not be shown in the record of trial or allied papers. Unless otherwise directed by the convening authority, a reporter will not be appointed for summary courts-martial.
The convening authority, when he deems it appropriate, may direct that a reporter not be used in special courts-martial. By regulations, the Secretary of a Department may require or restrict the appointment of reporters for summary and special courts-martial. See for oaths and 49 and 50 for duties. See appropriate departmental regulations for compensation and other matters pertinent to the employment of reporters and interpreters. While courts-martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States, they have an equally certain constitutional source.
They are established under the constitutional power of Congress to make rules for the government and regulation of the armed forces of the United States, and they are recognized in the provisions of the fifth amendment expressly exempting "cases arising in the land and naval forces" from the requirement as to presentment and indictment by grand jury. The jurisdiction of courts-martial is entirely penal or disciplinary. They have no power to adjudge the payment of damages or to collect private debts h.
United States, U. Brown, U. The appellate review of records of trial provided by the code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed, as required by law, and all dismissals and discharges carried into execution pursuant to sentences by courts-martial following approval, review, or affirmation, as required by law, shall be final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon all departments, courts, agencies, and officers of the United States, subject only to action under a petition for a new trial as provided in Article 73, and to action by the Secretary of a Department as provided in Article 74, and the authority of the President Art.
Only a Federal court has jurisdiction on writ of habeas corpus to inquire whether a court-martial has jurisdiction of the person and the offense or whether it exceeded its powers in the sentence adjudged. The jurisdiction of courts-martial does not, in general, depend on where the offense was committed Art. See, however, Article as to crimes and offenses not capital c.
Similarly, the jurisdiction of a court-martial with respect to offenses against military law is not affected by the place where the court sits. The jurisdiction of a court-martial-its power to try and determine a case-and hence the validity of each of its judgments, is conditioned upon these indispensable requisites: That the court was appointed by an official empowered to appoint it; that the membership of the court was in accordance with the law with respect to number and competency to sit on the court; and that the court was invested by act of Congress with power to try the person and the offense charged.
As to persons subject to the code under Article 2 and the act of 3 March 35 Stat. In addition to the persons described in Article 2, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has been terminated may, nevertheless, be amenable to trial by court-martial. See Articles 3, 4, and 73 and the notes thereunder. It is not necessary that an accused by a person subject to the code under Article 2 in order to be amenable to trial by court-martial for a violation of Article 83, , or For the jurisdiction of general courts-martial to try persons who by the law of war are triable by military tribunals, see A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing words, signs, or gestures in its presence, or who disturbs the proceedings by any riot or disorder Art.
See Contempts. General rule. The general rule is that court-martial jurisdiction over officers, cadets, midshipmen, warrant officers, enlisted persons, and other persons subject to the code ceases on discharge from the service or other termination of such status and that jurisdiction as to an offense committed during a period of service or status thus terminated is not revived by re-entry into the military service or return into such status.
To this general rule there are, however some exceptions which include the following:. Jurisdiction as to an offense against the code for which a court-martial may adjudge confinement for five years or more committed by a person while in a status in which he was subject to the code and for which he cannot be tried in the courts of the United States or any State or Territory thereof or of the District of Columbia is not terminated by discharge or other termination of such status Art.
Jurisdiction under Article 3a should not be exercised without the consent of the Secretary of the Department concerned. All persons in the custody of the armed forces serving a sentence imposed by a court-martial remain subject to military jurisdiction Art.
If a person in the military service obtains his discharge from an armed force by fraud, he may be apprehended and tried by court-martial for a violation of Article 83 2. See Upon conviction of said charge, such a person shall be subject to trial by court-martial for any offense under the code committed prior to the fraudulent discharge Art.
Any person who has deserted from the armed forces shall not be relieved from amenability to the jurisdiction of the code by virtue of a separation from any subsequent period of service regardless of the type of discharge under which such separation was accomplished Art.
In those cases when the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to the code, court-martial jurisdiction does not terminate. Thus when an officer holding a commission in a Reserve component of an armed force is discharged from that commission, while on active duty, by reason of his acceptance of a commission in a Regular component of that armed force, there being no interval between the periods of service under the respective commissions, there is no termination of the officer's military status-merely the accomplishment of a change in his status from that of a temporary to that of a permanent officer-and court-martial jurisdiction to try him for an offense committed prior to such discharge is not terminated by the discharge.
Similarly, when an enlisted person is discharged for the convenience of the Government in order to re-enlist before the expiration of his prior period of service, military jurisdiction continues provided there is no hiatus between the two enlistments. A member of the armed forces who receives a discharge therefrom while serving without the continental limits of the United States and without the Territories enumerated in Article 2 11 , and who immediately becomes a person accompanying, serving, or employed by the armed forces in such an oversea area, remains amenable to trial by court-martial for offenses committed prior to his discharge because such discharge does not interrupt his status as a person subject to the code.
So also a dishonorably discharged prisoner in the custody of an armed force may be tried for an offense committed while a member of the armed forces and prior to the execution of his dishonorable discharge. Effect of voluntary absence from trial. The accused's voluntary and unauthorized absence after the trial has been commenced in his presence by arraignment does not terminate the jurisdiction of the court which may proceed with the trial to findings and sentence notwithstanding his absence.
In such a case the accused, by his wrongful act, forfeits his right of confrontation. Effect of termination of term of service. Jurisdiction having attached by commencement of action with a view to trial-as by apprehension, arrest, confinement, or filing of charges-continues for all purposes of trial, sentence, and punishment. If action is initiated with a view to trial because of an offense committed by an individual prior to his official discharge-even though the term of enlistment may have expired-he may be retained in the service for trial to be held after his period of service would otherwise have expired.
See Article 2 1. Courts-martial have exclusive jurisdiction of purely military offenses. But a person subject to the code is, as a rule, subject to the law applicable to persons generally, and if any an act or omission he violates the code and the local criminal law, the act or omission may be made the basis of a prosecution before a court-martial or before a proper civil tribunal, and in some cases before both.
See 68d Former jeopardy. The jurisdiction which first attaches in any case is, generally, entitled to proceed. Under such regulations as the Secretary of a Department may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial Art.
See 97c and Article 14b as to the effect of such delivery to the civil authorities upon the execution of a sentence of a court-martial.
See pertinent departmental regulations made pursuant to Article Under international law, jurisdiction over members of the armed forces of the United States or other sovereign who commit offenses in the territory of a friendly foreign state in which the visiting armed force is by consent quartered or in passage remains in the visiting sovereign.
This is an incident of sovereignty which may be waived by the visiting sovereign and is not a right of the individual concerned.
The provisions of the code conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts or other military tribunals of concurrent jurisdiction in respect to offenders or offenses that by statute or by the law of war may be tried by such military commissions, provost courts, or other military tribunals Art. See Articles and for some instances of concurrent jurisdiction.
Each armed force shall have courts-martial jurisdiction over all persons subject to the code. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President Art. In general, jurisdiction by one armed force over personnel of another should be exercised only when the accused cannot be delivered to the armed force of which he is a member without manifest injury to the service.
Subject to this policy, the commander of a joint command or joint task force who has authority to convene general courts-martial may convene courts-martial for the trial of members of another armed force when specifically empowered by the President or the Secretary of Defense to refer such cases for trial by courts-martial.
Such a commander may, in his sound discretion, specifically authorize commanding officers of subordinate joint commands or joint task forces who are authorized to convene special and summary courts-martial to convene such courts for the trial of members of other armed forces under such regulations as the superior commander may prescribe.
Cases involving two or more accused who are members of different armed forces should not be referred to as courts-martial for a joint or a common trial. As to the composition of a general or special court-martial for the trial of an accused who is a member of another armed force, see 4g. In all cases, departmental review subsequent to that by the officer with authority to convene a general court-martial for the command which held the trial, where such review is required under the provisions of the code, shall be carried out by the armed force of which the accused is a member Art.
Persons and offenses. Subject to the regulations prescribed in 13, general courts-martial have power to try any person subject to the code for any offense made punishable by the code. In addition they have power to try any person who by the law of war is subject to trial by military tribunal for any crime or offense against the law of war and for any crime or offense against the law of territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or in part by the military authority of the occupying power.
The law of occupied territory includes the local criminal law as adopted or modified by competent authority, and the proclamations, ordinances, regulations, or orders promulgated by competent authority of the occupying power Art. Upon a finding of guilty of an offense made punishable by the code, general courts-martial have the power, within certain limitations, to adjudge any punishment not forbidden by the code Art. Certain punishments are mandatory under the law, for example, those prescribed by Articles and 1 and 4 : the discretion of courts-martial to adjudge punishments may be limited by the president under Article 56 ; the death penalty can be adjudged only when specifically authorized Arts.
When a general court-martial exercised jurisdiction under the law of war it may adjudge any punishment permitted by the law of war Art. Certain limitations on the discretion of military tribunals to adjudge punishments under the law of war are prescribed in international conventions, some of which are listed in the notes under Article 18 app.
Although a capital offense for which there is prescribed a mandatory punishment beyond the punitive power of a special court-martial may never be referred to such a court, an officer exercising general court-martial jurisdiction over the command which includes the accused may cause any other capital offense to be referred to a special court-martial for trial. The Secretary of a Department may, by regulations, authorize officers exercising special court-martial jurisdiction to cause capital offenses, except those in violation of Articles and 1 and 4 , to be tried by special court-martial without first obtaining the consent of the officer exercising general court-martial jurisdiction over the command.
Subject to the exceptions noted in the following subparagraph, the offenses denounced in Articles 94, 99, , , , a, 1 and 4 , and a are capital at all times; those denounced by Articles 85, 90, , , and are capital if committed in times of war. Upon a rehearing or a new trial a case is not capital if the authorized sentence adjudged at a prior hearing or trial was other than death Art.
However, no offense for which a mandatory punishment is prescribed can be tried by a special court-martial if such punishment is beyond the power of a special court-martial to adjudge. Thus a case of premeditated murder cannot be referred to a special court-martial for trial because the penalty in event of conviction must either be death or imprisonment for life Art.
Special courts-martial may, under such limitations as the President may prescribe ; Art. Subject to approval of the sentence by an officer exercising general court-martial jurisdiction Art. As to forfeiture of pay, even when a bad conduct discharge is adjudged, a special court-martial is limited by Article 19 to the adjudgment of forfeiture of two-thirds pay per month for six months.
As to other limitations see to Punishments. Subject to the regulations prescribed in 13, summary courts-martial have the power to try persons subject to the code except officers, warrant officers, cadets, aviation cadets, and midshipmen for any noncapital offense made punishable by the code. No person with respect to whom summary courts-martial have jurisdiction shall be brought to trial before a summary court-martial if he objects thereto unless under the provisions of Article 15 he has been permitted and has elected to refuse punishment under such article If object to trial by summary court-martial is made by an accused who has not been permitted to refuse punishment under Article 15, trial shall be ordered by a special or general court-martial, as may be appropriate Art.
Summary courts-martial may, under such limitations as the President may prescribe ; Art. See c 2. The maximum amount of confinement and forfeiture of pay or confinement and detention of pay may be adjudged together in one sentence. Since confinement and restriction to limits are both forms of deprivation of liberty, only one of those punishments may be adjudged in maximum amount in any one sentence.
An apportionment must be made if it is desired to adjudge both forms of punishment-confinement and restrictions to limits-in one and the same sentence. For example, assuming the punishment to be in conformity with other limitations, a summary court-martial might adjudge confinement at hard labor for 15 days one-half of the authorized confinement , restrictions to limits for 30 days one-half of the authorized restriction , and forfeiture of two-thirds pay for one month.
In such a case, the more severe form of deprivation of liberty is served first, the less severe thereafter. In addition to or in lieu of other punishments, summary courts-martial have the power to adjudge reprimand or admonition. The paragraphs on this subject deal primarily with the apprehension and restraint of persons subject to the code in connection with trial by court-martial, and deal only incidentally or not at all with the apprehension and restraint of such persons for other purposes, with the apprehension and restraint of persons not subject to the code, and with various other matters touching apprehension and restraint such as those concerning confinement on bread and water or diminished rations , the effective date of certain sentences h 5 , execution of a sentence of confinement 93 , resisting apprehension a , breaking arrest or escaping from custody or confinement b, c, d , releasing a prisoner without authority a , unlawful detention of another , and confinement as punishment for contempt Apprehension is the taking into custody of a person Art.
Arrest is the restraint of a person by an order not imposed as punishment for an offense directing him to remain within certain specified limits Art, 9a. Basic considerations. The foregoing provision is not mandatory and its exercise rests within the discretion of the person vested with the power to arrest or confine. No restraint need be imposed in cases involving minor offenses. A failure to restrain does not affect the jurisdiction of the court.
If members of the armed forces of the United States are separated from the other categories mentioned, however, they may be confined in the same jails, prisons, or other confinement facilities. No person, while being held awaiting trial or the result of trial, shall be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence, but, during such period, for infractions of discipline, he may be subjected to minor punishment Art.
Minor punishment shall include all punishment authorized by appropriate departmental regulations for violations of the discipline prescribed for the place in which an accused is confined. Prisoners being held for trial or whose sentences have not been approved and ordered executed will be accorded the facilities, accommodations, treatment, and training prescribed in pertinent regulations. Although no forfeiture of pay or allowances may be effective prior to approval of the sentence by the convening authority, when a sentence of court-martial as lawfully adjudged and approved includes a forfeiture of pay or allowances in addition to confinement not suspended, the forfeiture will apply to pay or allowances becoming due on and after the date the sentence is approved by the convening authority h 5 ; Art.
But see 88e 2 c with respect to the suspension or deferment of forfeitures in certain cases. Who may apprehend. All officers, warrant officers, petty officers, noncommissioned officers, and, when in the execution of their guard or police duties, air police, military police, members of the shore patrol, and such persons as are designated by proper authority to perform guard or police duties, are authorized to apprehend, if necessary, persons subject to the code or subject to trial thereunder upon reasonable belief that an offense has been committed and that the person apprehended committed it.
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